Well t'aint a pardon, and t'aint attainder...

January 24, 2008 7:26 AM

Two to three questions involving the pending FISA bill--specifically the immunity provisions.

1)
The Constitution expressly forbids Congress from passing bills of attainder, which punish individuals or groups of individuals without trial. Is there a similar term describing laws which single out individuals or groups of individuals for some benefit--either material or legal? One example I have in mind would be the current FISA bill (which includes a provision of immunity for telecoms), although I suppose that under a loose interpretation, earmarks for local or state governments might also be included in this category. Are there examples of these sorts of laws being overturned. If so, on what grounds, and what is the prevailing legal standard for overturning such statutes?

2)
(a) Why is the current administration trying to push telecom immunity through Congress, when the power to pardon is expressly and without qualification granted to the President by the Constitution? What prevents Bush from simply granting immunity from prosecution to the relevant individuals and/or corporations?

(b) If the answer to part (a) happens to be that "the pardon wouldn't extend to civil cases" (would it?) would it not be considered an act of attainder for Congress to strip telecom customers of the right to sue?

To be clear, I'm looking for legal arguments and explanations, preferably with caselaw and/or code citations (not Bush and/or Congress bashing).

posted by dsword to law & government (13 comments total)

Re: 2) I believe that you need to be convicted before the president can pardon you. There haven't been any convictions yet, I think.
posted by unixrat at 7:51 AM on January 24, 2008

Basically, the whole mess boils down to the fact that this wouldn't even be an issue if the telecom companies were allowed to say "here's the memo we got from the DOJ saying x, y, and z was legal", but to cover their own ass, the administration has heavily classified those documents and prohibited the telecom companies from using them in their own defense.
posted by Oktober at 8:21 AM on January 24, 2008

1) There is no converse of the idea of bills of attainder. I think you're misunderstanding the meaning of this concept: the purpose of the prohibition is to keep the legislative branch from acting the part of the judiciary. It isn't about special treatment. Congress regularly grants special treatment to individuals and groups. You mentioned earmarks. So, you will find no legislation that has been overturned based on it benefits for one individual, group or the other.

2) unixrat is correct: you have to be convicted at trial before you can be pardoned. These guys don't want a trial.

b) I don't really know what you're getting at here, but it would be absolutely unconstitutional to strip anybody of the right to sue. But, not because it would be an act of attainer. See: Bill of Rights.
posted by General Malaise at 8:30 AM on January 24, 2008

SCOTUS has recognized that the United States has a legitimate need for security. The US government is responsible for protecting the nation against foreign threats.

All rights are balancing acts; there is no right which is unconditional and unlimited. An example of that is child pornography: it isn't protected by the First Amendment. SCOTUS has decided that the Federal Government has a significant responsibility and interest in protecting children, and child pornography can only be created by harming children, so the government can punish people for possession due to the fact that if there is no market for child porn, there will be less incentive to produce it, and thus fewer children will be harmed. In the face of that, the First Amendment must give way. (On the other hand, child porn which is produced without using any live children, e.g. drawings or computer re ndering, is legally protected under the First Amendment.)

So I think the argument in this case will equally be one of balancing. While ordinarily it would be true that citizens have a right to sue, the argument would be that the Federal Government has a need to collect intelligence in certain ways, and needs cooperation from certain private companies to do it, and would not be able to do so if those companies were in fear of lawsuits. Thus the Federal Government would need for those companies to be immunized against suit so that they will more willingly cooperate.

It should be pointed out that there is long legal precedent for granting immunity to civil suits to private corporations and individuals; this would not be the first. For instance, anti-trust law is civil law. The NFL and MLB and NBA are specifically exempted from those laws. Citizens have a right to sue, but Congress decides what they may sue for, when, and how much. If Congress changes those laws, and eliminates a class of tort, you're OOL. Congress can decide that the telecommunications companies cannot be sued for this; it has that power.

You, as a citizen, can file an anti-trust lawsuit against Microsoft, but you cannot file such a suit against the NFL because Congress has decided you cannot. (And the only thing you can do about it is to lobby Congress to get them to change the law.)

As regards the President's pardon power, that only covers criminal law.
posted by Steven C. Den Beste at 9:00 AM on January 24, 2008

General Malaise is spot on with the answer to #1. To expand, there are tons of examples of people and groups getting special (favorable) treatment from carve-outs the tax code to immunity provisions in copyright acts all the way up to diplomatic immunity for criminal issues and at many spots in between.

As for 2a and 2b, Article 2, Sec. 2 of the constitution says "[The President] shall have Power to Grant Reprieves and Pardons for Offenses against the United States." While I can imagine a situation in which the united states brought a civil suit against an individual or corporation, this language was likely intended to distinguish civil (two people suing each other) from criminal (where the government is party to the proceedings). Pardon power does not to extend to civil cases.

Further, General Malaise is right about 2b, also. To expand on that, though, there are a nearly infinite number of things for which there is no private right of action. You can still sue for them, of course (you can sue for anything), you just won't win.

More generally, though, there's a vast, vast difference between congress conferring a benefit upon a group of people and a bill of attainder. While I'm typically loathe to cite to Wikipedia for legal issues, the article there on Bills of Attainder has quite a bit of historical background and examples of what a Bill of Attainder actually is.
posted by toomuchpete at 9:07 AM on January 24, 2008

... but it would be absolutely unconstitutional to strip anybody of the right to sue.

That is not correct. This is exactly what the Bush administration wants the new FISA bill to do. Cheney in a speech to the Heritage Foundation said this yesterday:

"the law should uphold an important principle: that those who assist the government in tracking terrorists should not be punished with lawsuits. We're asking Congress to update FISA and especially to extend this protection to communications providers alleged to have given such assistance any time after September 11th, 2001. This is an important consideration, because some providers are facing dozens of lawsuits right now."

In addition, last week in the case Stoneridge vs Scientific-Atlanta, the Supreme Court ruled that shareholders had no right to sue those who "aid and abet" a fraud against shareholders even if their actions were illegal, thereby affirming that there is no absolute right to sue.
posted by JackFlash at 9:19 AM on January 24, 2008

I don't think you have to be convicted to be pardoned. Didn't Ford pardon Nixon for all offenses he might have committed against the United States?
posted by dcjd at 9:24 AM on January 24, 2008

Re: 2(a), I suspect that the answer lies in the theory of the Unitary Executive, that the President's advisers believe that a pardon would contain an implicit admission that the President in his role as Commander in Chief is bound by the law. To issue a pardon is to admit that a pardon is necessary, which means both that wrongdoing occurred & that Congress has a legitimate avenue to exercise authority over the Presidency with future legislation. It wold be much less limiting on the Presidency to define the telecom's acts as legal post-hoc.
posted by scalefree at 9:38 AM on January 24, 2008

DCJD, yes, the President can grant a blanket pardon to someone to immunize them against criminal indictments and trial.

But that has nothing to do with civil liability.
posted by Steven C. Den Beste at 9:59 AM on January 24, 2008

It's a derail, but please note that Steven C. Den Beste's description of why the President and Congress are pursuing retroactive immunity is wildly off base. The existing law provides for telecom immunity if they receive a certified request from the government, or if there is a good faith basis to believe that they are complying with the law. Some telecom companies declined the administration's requests because they realized the requests were unlawful under the FISA law. A US District Court has already held that the telecoms who did comply did so in violation of FISA.

Barring acts of attainder is meant to prevent abuse of the criminal law system. Changing the rules in the middle of the game re: civil suits is not addressed in the Constitution.
posted by ibmcginty at 10:40 AM on January 24, 2008

What I'd like to know is (a) how the telecoms/administration are defending the spying when it started before 9/11, (b) why Harry Reid & Co. seem more than happy to help push the immunity provisions through (or at least not stand in the way of them), and (c) what the fuck, Congress. What the fuck.
posted by Rhaomi at 11:27 AM on January 24, 2008

2nd'ing ibmcginty. That's my understanding as well.
posted by rhizome at 11:29 AM on January 24, 2008

First, attainder involves a specific person. The telecoms are multiple people in the eyes of the law. Its not clear that they would be considered people under such a situation because the joint-stock corporation did not have such a status at the time the framers drafted the provision. It is their view which controls. Another example is the 14th Amendment, which does not apply to D.C. because its 1860's era framers did not consider D.C. a state.

As for the pardon question, I think it is an open question. The constitutionality of the Nixon pardon was never challenged as far as I know. (Don't think you could get standing to do so anyway.) As SCDB correctly points out, a pardon does not deal with civil liability,

SCDB's interpretation of the balancing test is inapposite. Such a test is applied when a person asserts the government has violated their constitutional rights. Here, the party in question is the telecom company.It is forbidden from engaging in illegal wiretapping via federal and state statute.
posted by Ironmouth at 5:55 PM on January 24, 2008