Lawyer type people -- Question about the Geneva Conventions Bill

[Vaevictis]

According to recent reports, the new bill "clarifying" the definition of torture under the Geneva Conventions will apparently retroactively apply itself, with the intenteded effect of the "retroactive" part being that any executive branch-ers who broke standing laws being "pardoned".

My question being: Is there any case law on this sort of thing?

It would seem to me that the fact that the fact that the President (only) is granted the ability to pardon or commute would implicitly deny Congress that right under the theory of enumerated powers -- if you buy that theory anyway.

Also, it would seem to me that this would possibly violate the provision against ex post facto laws, and I was wondering how the courts have interpreted that particular clause.

EDIT: ****. Wrong forum. Mods please move. How embarassing.

[handcrafted]

I think you may be confused. If the re-definition of torture were retroactive then it would be applied to incidents which have already occurred, which would *make* it an ex post facto (latin for "after the fact") law and therefore unconstitutional.

The only way they can do it is apply the new definition proactively (from now on) and absolve public officials from liability for anything done under the old definition that would violate the new law. If the bad act was done in violation of the law as it stood at the time, then it can still be prosecuted.

[Vaevictis]

Maybe the news casters are confused, but I am not. That is how it was reported.

[Vaevictis]

Oh, and by the way, straight from the Senate version of the bill (S3930):



(2) RETROACTIVE APPLICABILITY. -- The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).


I've only briefly read it, so I'm not sure that I understand the context, but they're definately trying to do something retroactively -- which as I mentioned, makes me immediately think of the ex post facto prohibition in the Constitution.

[nanimonai]

You have some people tied up in your basement that you're concerned about? ;)

[Vaevictis]

You have some people tied up in your basement that you're concerned about? ;)

Heh, I'm actually just curious on the case law on this type of thing. It would seem to me that it isn't legal via a plain reading of the Constitution, but case law has a tendency to "clarify" (aka, "distort" in some cases) these things.

[handcrafted]

Think I figured this out after a bit of googling. It's the *clarification* that is being applied retroactively so as to ensure that the people at the CIA will *not* get in trouble. It's only an ex post facto law if you are calling something a crime that previously wasn't. If you are doing the opposite, or in this case, just saying "what we really meant was" and then saying previous actions are legitimate, then it's not a problem. And it's not a pardon, because nobody's been convicted. You can only pardon a conviction.

Reporters, both print and broadcast, often over-simplify legal stuff and in the process confuse the readers/listeners.

[Okla-homey]

Handcrafted is correct. Ex post facto laws make an activity illegal after the fact. (a/k/a retroactively)

IOW, if Congress passed a law today that said no one was allowed to make the "hook'm" sign (because it's ghey) and it is highly offensive to bullfighters...you couldn't charge people who made the "hook'm" sign last month with the crime because they made that horrid gesture before the law was passed that made it illegal.

The founding white guys took a pretty dim view of ex post facto laws because they had been historically used in England from time to time to deny people their liberty and property.

[Vaevictis]

Handcrafted is correct. Ex post facto laws make an activity illegal after the fact. (a/k/a retroactively)

I always figured that ex post facto would apply to making illegal things legal after the fact also. Is that not the case?

[Okla-homey]

I always figured that ex post facto would apply to making illegal things legal after the fact also. Is that not the case?

Such doings do not involve ex post facto laws.

Incidentally, the reason Charlie Manson is still breathing is because when he was Helter Skeltering, CA didn't have the death penalty. The fact they now do is of no moment. If CA tried to snuff him now under their current sentencing laws, that would be constitutionally barred.

Generally, you are correct that activity is judged based on the laws in effect at the time of the activity. That said, folks sometimes receive pardons who were convicted under laws which were later amended or repealed by the legislature/Congress.