Conspiracy to Protect the President from Prosecution

[LeftHander]

The GOP is conspiring to use thier political power to enact laws to protect a specific person(s) from crimes committed while in office. What follows is a essay I wrote that may provide some fodder for legal challenges to any legislation enacted to protect W and exonerate him from crimes committed while in office.


Ex Post Facto Protection for Crime
Uncovering a Conspiracy to protect the Executive from Prosecution.

(Originally published MArch 3, 2006 on Where Are The Weapons)

The President has violated federal law and the Constitution by enacting his own law in violation of FISA. Legislative GOP leaders are taking steps to enact legislation to retroactively protect the President from prosecution.

Ex Post Facto in reverse - Normally this is when a law is passed that retroactively creates a crime on actions that were previously legal. One cannot prosecute retroactively. But can a government specifically a party, create a law to protect the President from prosecution? The question now is can a law be made to retroactively make a crime a non-crime to protect a individual after it was committed? GOP activities concerning altering laws around FISA and the NSA spy scandal smack of a Ex Post Facto law which decriminalizes a former criminal activity to protect the Presidency.

Legal definitions of Ex Post facto include the converse and in a case concerning the punishment of first time drug offenses have NOT BEEN retroactively applied. In other words when a person is convicted of a crime and sentenced that sentence holds despite a change in punishment. It can however have an effect on the parole of an individual and the executive could commute the sentences wholesale in such a case.

It appears that the legality of any law enacted by the GOP controlled legislative branch that protects the president from prosecution could be subject to legal challenge on the grounds it's intent was to retroactively alter the legal consequences of an action thus the law becomes a Ex Post Facto law. It's intent is to alter the legal consequences of a action for a specific person. I do not think exceptions to the Ex Post Facto ban include actions to protect a specific individual from prosecution for their actions. If the intent is to correct unfair punishment of a population then the intent if based on fairness and equality. Clearly in this case it is not.

Legal researchers: What is needed is a case law example of a law declared Ex Post Facto or a conviction of elected officials who conspired to protect another official through legal means by enacting a law that protects an elected official from prosecution. I believe that intent and conspiracy to protect a corrupt elected official from prosecution through legislation must of been encountered in this nation's legal history.

An example would be of a city government passing a law to protect a mayor from legal scandal. Zoning, gifts, bribes or procedural rules or powers granted Ex Post Facto.

Background on Ex Post Facto legislation from the what I could find.

The constitution states clearly a ban on Ex Post Facto laws that alter the legal consequences of a action in the past with the intent of prosecution for criminal activity that was once legal.

From http://www.usconstitution.net/glossary.html#EXPOST :

In U.S. Constitutional Law, the definition of what is ex post facto is more limited. The first definition of what exactly constitutes an ex post facto law is found in Calder v Bull (3 US 386 <1798>), in the opinion of Justice Chase:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it greater than it was, when committed.
3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender

President Bush claims to of been given authority to do initiate the warrant less spying on various grounds...his defense could be deemed a "Mistake of Law" defense. Many statues exist in this regard one example is New York state's:

NY Penal Law Section 15.20 (2) A person is not relieved of criminal liability for conduct b/c he engages in such conduct under a mistaken belief that is does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered w/ responsibility of administering, enforcing, or interpreting such statute.

Given the exceptions to "Mistake of Law" it is clear that the Bush administration had a defense in place if knowledge of the NSA wiretapping ever became public. Simply by officially stating a defense that is in keeping with common exceptions to the "Mistake of Law" defense.

However much of this defense is refutable given the clear intent on the part of the Bush administration to circumvent federal law and engage in warrant less spying. Clearly the discussions with the members of congress about the NSA spying program would constitute a clear intent to circumvent the law. Thus any actions by congress to legislate a retro active protection legislation should be seen as a conspiracy and thus any such legislation would be found to be in violation of the constitutional Ex Post Facto ban as it alters the legal implications of a crime.

This is a extremely important legal point. If the President in conjunction with congress is allowed to pass Ex Post Facto laws to protect the executive branch from prosecution without legal challenge then our democracy will of failed and so too would the rule of law. At this time the United States is not suffering a rebellion or invasion that would constitute the protection of Presidential powers such as Lincoln encountered in the the Civil War under Taney vs. Lincoln.

Basically even if the GOP creates legislation to grant the president power to violate the constitution G.W. Bush's implementation of the NSA spy scandal would not be retroactively included in any Legislative change made by congress. At the time...G.W. Bush violated an existing statue thus any action by members of his own party would be seen as intent to protect him from prosecution and could essentially be declared unconstitutional under the Ex Post Facto ban and open for prosecution of conspiracy to obstruct justice under the RICO act.

[Virginia Dare]

1. k&r...All The President's Men....n/t

[msongs]

2. don't you wish an elected democrat would make this charge?

although most congress persons avoid speaking plain english, there must be ONE who will say what is real about all this law changing going on. Surely there must be ONE? right? right?

Msongs
www.msongs.com/political-shirts.htm

[rodeodance]

3. this provision does not get as much (if any) coverage in the media.

[Philosoraptor]

4. And that's no theory.

when two or more people conspire, that's called a conspiracy, and that's not a theory.

[The Backlash Cometh]

5. Five or ten years from now, will their efforts really matter?

If the Democrats take over, we need to bring integrity back to the media and get the facts out to the public. In five years of countering the Bush propaganda, people will truly grow to hate what Bush has done to us. So, when the global tribunals begin, what do we care if they ignore this legislation that the Republicans are about to pass?

[wtmusic]

6. You can't be punished for something that isn't a crime. Period.

It doesn't matter that it was a crime when the act was committed.

A judge might throw out the law as a bill of attainder, i.e. passed to address a specific instance.

[LeftHander]

10. interesting...thnx..nt

[ktlyon]

12. we're talking about a crime and it should be punishable

you shouldn't be able to give special treatment
if he violated the law let's enforce the law
IMPEACHMENT NOW

[wtmusic]

13. Said to emphasize the fact that NOW is the time to act

to stop the decriminalization of torture! Once the law is passed W is, for all practical purposes, off the hook. :grr:

[ktlyon]

14. unless the law is declared unconstitutional

they would have to change many laws and treaties to avoid legal problems

[LeftHander]

18. WHo will do that? SCOTUS?

Don't bet on it. Though I can't imagine any legal mind accepting torture and presenting subsequent in secrect proceedings as being "American" and in the spirit of justice.

[Exultant Democracy]

7. I hope you note that last week Bush tried to push through

legislation that would have basically made it impossible to prosecute intelligence agents for committing torture. Bush claimed to be responding to the needs and requests of CIA agents, but it looks like it is just part of is pattern.

[BR_Parkway]

11. I'd rather prosecutors made deals not to prosecute in exchange

for those higher up the food chain personally.

[converted_democrat]

8. K&R-n/t

[northzax]

9. But there is good news-

we can totally waterboard him now! Good times.

[tbyg52]

15. Only if we can catch him.... nt

[leveymg]

16. Legislators can be found liable, but the ex post facto argument may not

be the vehicle that works best in this case.

Ex-post facto legislation with exculpatory effect is commonplace and Constitutionally acceptable. For example, the 1934 legalization of alcohol production and consumption following the repeal of the Volstead Act was not successfully challenged on constitutional grounds. However, the U.S. had no international treaty obligations to enforce Prohibition.

The situation is very different with regard to torture. The War Crimes Act implements the UN Convention Against Torture (CAT). Under the War Crimes Act, it is a crime for U.S. persons to order, incite, assist or carry out torture outside the U.S. If that torture results in death, that may trigger the death penalty if prosecuted under U.S. jurisdiction. Actual amendment to the War Crimes Act would trigger mandatory enforcement of the treaty. A change to U.S. law that has the intent and effect of shielding torturers would also make the legislators subject to prosecution. Like the Genocide Convention, CAT has no opt-out clause. Efforts to amend it could implicate Congressional sponsors and signatories as co-conspirators in violations of the Treaty. That's as true here as it would be for legislators who might try the same thing in Rwanda, Iraq or Serbia.

If you wonder why McCain and John Warner aren't lined up behind their President in "clarifying" Common Article III, it's because they understand that Bush and his lieutenants will face trial under The UN Convention Against Torture (CAT) if the US amends the War Crimes Act -- they do not want to face charges at The Hague as confederates after the fact.

If Congress passes exculpatory legislation, that will trigger mechanisms contained in CAT that mandate international enforcement. If the U.S. national authorities fail to charge violators, the international community will be obligated to convene a hearing to determine whether the matter should be handed over for collective prosecution. That obligation is in the CAT and Genocide Conventions, and the Nuremberg Trials are precedent for tribunals under the Geneva Convention. All it takes is for one signatory country -- let's say Venezuela -- to call for a hearing, and the process of prosecution begins.

Bi-lateral treaties can be rescinded, not int'l conventions, except those with explicit opt-out provisions, such as the ABM and NPT Treaty, which the * Administration have abrogated. On the other hand are binding treaties, such as the Geneva Conventions and the UN Comventions on Torture and Genocide, the terms of which remain permanently binding on all signatories, regardless of changes in national law and policy.

[mmonk]

17. Yes, the congress is engaged in a conspiracy against

the constitution. What's worse is trying to legalize unconstitutional behavior through the setting of a precedent.

[indepat]

19. And we should know what that makes all who participate in the assault