The distinction made, as noted in Calder v. Bull (1798) is that ex post facto law deals mainly with an escalation or imposition of penalties—in other words, criminalizing a previously innocent action, or increasing the penalty for an already performed action. This, then, seems to differ from retrospective law, which is usually the opposite, wherein the government will lesson or remove punishments retroactively for any given action.

Under this distinction, immunity for the telecom companies would seemingly fall outside of ex post facto law. While this may have a solid legal footing, I’m not sure it’s practicing good morality. For, under this authority, previous actions can be swept under the rug. Of course, this will not apply to Joe and Susan—average citizens both—but to companies and individuals who wield power, have connections, and plenty of money. This system, then, affords the powerful a scapegoat and lifesaver.

Thanks to all who have commented and helped to clarify this distinction.

I believe ex post facto is specifically interpreted as making a law more stringent, not less. The term your article represents is an amnesty law, (which may seem implicit with ex post facto)

Plus as an earlier person pointed out, ex post facto in the US applies to criminal cases, not civil suits.

I don’t know how you could write so much on the topic and ignore something so simple.

This article supports the opinion that ex post facto law is permitted for civil matters, as does this collection of court cases.

In regard to the article, as with any other important set of words, there will always be disagreement over what they mean (e.g. the old testament). Frankly, this is part of why I think law is so dang interesting and even fun (I know – I’m sick!). When faced with strong arguments on either side, the decision ultimately rests on which side is most convincing, which decision almost always involves a normative judgment colored by precedent. Precedent is pretty strong in this regard. If you’re an “originalist,” however, there’s really little to go on. There were entirely too many people involved in creating the Constitution, so trying to pin down any airtight “intent” is sure to be a losing battle.

In regard to the cases, I didn’t see that they refuted my point above other than to add the common-sense caveat that civil laws may sometimes have the character of criminal laws, and so they might conceivably fall within the prohibition. In any event, the cases support my assertion that the ex post facto law in question must work to the detriment of the accused. In this case the accused (or potential accused) are the telecom companies. The law does not work to their detriment. Even if we were to accept that civil laws are included within the Constitutional meaning of “ex post facto,” these cases would support the Constitutionality of retroactive immunity.

I very much disagree. Without holding companies (and individuals) accountable for their actions, society loses its understanding of morality and virtue.

I’m sorry, I wasn’t clear. “Nothing to be gained” is too strong a statement. What I meant is that if the telecom co loses a civil suit against them then they will probably suffer no real injury because the government will indemnify them. Even if there’s a judgment against them, they won’t really be held responsible.

He then goes on to argue that action requires the knowledge of causality, something I discussed here. Ex post facto law removes this causality, allowing legislators to add or remove effects to any given cause. As Mises defined it, this is chaoos.

Here is where I think most of these sorts of arguments head south. Most times somebody says “that’s unconstitutional” what they are in fact saying is “that’s not how we should interpret the Constitution.” When you step into these normative arguments you move away from the “plain-on-its face textualism” or “historical meaning” arguments you seemed to originally espouse. Normative arguments are weaker because people have different ideas of how the world should be. To that extent, you’re mostly speaking clearly to your (presumably) American-style Libertarian base of readers and supporters, but others will have valid disagreements that are far removed from the actual text of the Constitution.

I personally don’t agree with your analysis of resulting chaos if we were to exclude laws retrospectively removing penalties from the ex post facto prohibition. Setting aside the fact that you assume that chaos is itself something that can or should be avoided, to argue that such liability-decreasing retroactive laws create chaos ignores the rather pedestrian observation that such retroactive changes in the law happen all the time and results in no such chaos. The Supreme Court retrospectively strikes down laws as unconstitutional. The President retrospectively commutes sentences or pardons crimes. So it happens already, it happens Constitutionally, and I think that as a normative matter it should. The law in strict, mechanical application is sometimes unjust; there should be measures in place to address that deficiency.

So there we go. After all that argument, just remember that I’m all for sticking it to the telecoms, but I don’t think we’ll be successful even if they lose the lawsuits, and I don’t think retroactive telecom immunity is unconstitutional. In the end, we the taxpayers will be stuck holding the bag, but it’s still worth the fight if it exposes the shocking extent of Bush’s illegal actions.

I’m going to bed! :)

BTW – I just saw the Faust quote at the bottom of the page and realized you’re LDS too. Small world! :)

Thanks for the insight.

First, and probably most relevant, is that the telecom companies almost assuredly have an indemnification agreement with the Federal Government…

Yeah, this worries me. Essentially, the consequences of the telecom’s actions will be put on the shoulders of the taxpayers, as we would then finance whatever penalties they were required to pay. That seems, as President Bush stated (albeit arguing for the reverse), “patently unfair”.

Secondly, while there’s some evidence that some of the “framers” thought “ex post facto” included civil laws, it’s well-established that the most influential federalists in the late 18th Century understood an “ex post facto law” to mean a law that was 1) criminal, 2) functioned retroactively, and 3) worked to the detriment of the accused.

This article supports the opinion that ex post facto law is permitted for civil matters, as does this collection of court cases.

As Madison argued in Federalist 44, ex post facto laws in general are “contrary to the first principles of the social compact and to every principle of sound legislation.” In that vein, I believe that it matters little if the issue is a criminal or civil one. Indeed, when the telecoms open their information to the government in violation of stated privacy regulations, they are liable to be sued for breach of contract. In addition, the government is acting illegally by circumventing established law and secretly obtaining private information. It seems that in such cases, the lines between “criminal” and “civil” become blurred.

There is probably nothing to be gained by holding the telecom companies responsible…

I very much disagree. Without holding companies (and individuals) accountable for their actions, society loses its understanding of morality and virtue. If somebody is allowed to break the rules and receive retroactive immunity, what is to prevent others from doing the same? What is to curb the decreasing trust among all customers and participants? What is to draw the line between right and wrong, and enforce penalties?

The problem with ex post facto law is the unsure footing upon which one’s actions stands. How am I to act—choose between two or more options—without knowing the (intended or apparent) consequences of each action?

Ludwig Von Mises discussed this in Human Action when he said:

Man is in a position to act because he has the ability to discover casual relations which determine change and becoming in the universe. Acting requires and presupposes the category of causality. Only a man who sees the world in the light of causality is fitted to act. … In a world without causality and regularity of phenomena there would be no field for human reasoning and human action. Such a world would be a chaos in which man would be at a loss to find any orientation and guidance.

He then goes on to argue that action requires the knowledge of causality, something I discussed here. Ex post facto law removes this causality, allowing legislators to add or remove effects to any given cause. As Mises defined it, this is chaoos.

There is probably nothing to be gained by holding the telecom companies responsible because of the indemnity agreements, and there is certainly nothing to be gained in terms of Constitutional principle since this is not an ex post facto law within the accepted and probable meaning contained in the Constitution. There is, however, something to be gained: exposure of the Bush Administration’s methods and scope of operation, both of which will be sobering and a little terrifying to all but the most stubborn Bushies. It might cause the program to be scaled back, and might cause political damage ahead of the Presidential vote. It’s a huge stretch, but it might even touch off some much needed introspection within the Republican Party.
We can only hope!

Presidents are given the power to pardon people for certain actions. Companies do not apply here, but at least there is some semblance of similarity of powers regarding what the President is pushing.

Congress, however, is specifically prohibited from passing retroactive laws. Those that voted against such a measure are in a better position, to be sure, but the fact that they’re discussing it at all (with nobody, as far as my digging has turned up, stating the un-Constitutionality of the measure) is disappointing.

The President cannot legislatively grant the immunity. He could try one of his many signing statements—his signature (pun intended) approach at creating his own law—but he wouldn’t get away with something like that. Instead, he correctly turns to Congress, advocating that this body approve the retroactive measure.

President Bush has committed far bigger crimes that render him worthy of impeachment and prosecution.

Bush pushes for retroactive immunity, Congress (quite rightly) knocks it back, and you say Congress should be impeached and arrested?

Don’t you mean ‘the president’, since he’s the one arguing for retroactive immunity? It would seem that Congress is doing the right thing here. (Just barely.)