Tuesday, October 9, 2007

Ex Post Facto Laws Are Unconstitutional

Even after almost a half-century here, I learn something new about this country every day and almost all of it leaves me despairing about its future. This morning I learned that ex post facto (also known as retroactive) laws and bills of attainder are now being enacted and enforced in this country even though the Constitution specifically forbids them ("No bill of attainder or ex post facto law shall be passed"). The news was contained in an article in The Miami Herald about 300,000 immigrants (legal and illegal) which have been deported in the past 20 years because of criminal offenses as trivial as shoplifting after they had already served their sentences. The law, which mandates their deportation without a hearing or consideration of extenuating circumstances, and, sometimes, even when they they have been convicted of no crime, was passed in 1988 and emended in 1996, when its application was made retroactive.

If the Constitution were not clear enough in its wording, the Supreme Court in Calder vs. Bull affirmed the unconstitutionality of ex post facto laws 200 years ago: "Every law that makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution." If someone committed a crime in, say, 1980 which was not subject to deportation in 1980, he cannot be deported for it in 2007 because that would be a violation of the Constitution's ban on ex post facto laws, even if Congress passed and the president sign a thousand unconstitutional-laws permitting it. The only options open to the government are to stop enforcement of that unconstitutional provision or to amend the Constitution and deprive all Americans of an essential guarantee of their freedom.

Ex post facto laws are not new; they are as old as the oldest tyranny. They are, and have always been, the favorite expedient of despots for criminalizing an entire population. Castro's show trials in 1959, which killed 15,000 Cubans by firing squad, more than died of natural causes in the entire year, were based on ex post facto laws.

So were the Nuremberg trials. Under President Grau San Martín, Cuba, one of the 52 founding states of the United Nations, voted against establishing a "war crimes tribunal" because it was a violation of international law, which had since its inception proscribed ex post facto laws as had all civilized countries up to that time. The United States, although its Constitution forbade such laws at home, voted in the affirmative as did all the major Allied powers. Of course, principle was sacrificed to political expediency and justice was replaced by revenge. The Nazis could have been tried as murderers and accomplices to murder under existing German laws with the same results (as many were after Nuremberg). Instead, the Allied powers created new laws and applied them retroactively to old crimes, denying real justice in order to perpetrate "exemplary" or "divine justice" as a suitable coda to the triumph of Western democracy (and Soviet despotism) in World War II.

It would have been better if Winston Churchill's position had prevailed. He was initially against the war crimes tribunal. He wanted the summary execution of the top Nazis, which at least would not have involved enshrining ex post facto laws as an acceptable legal recourse.

The prohibition against ex post facto laws was one of the sacred precepts of Western jurisprudence, and, indeed, Western civilization before the War. In fact, the war was fought to save it and all other concepts of the Rule of Law. After Nuremberg, the aberration became the norm in international law. But it never became the norm in U.S. law. Whatever U.S. conduct may be outside the U.S. (in Guantánamo, for example), the Constitution does not allow the application of ex post facto laws in this country. And yet, unconstitutional laws which embrace the outlawed principle are being enacted and enforced in this country to achieve, again, a "higher law" than sanctioned in the Constitution.

The deportation bill against legal residents is also a bill of pains and penalties, which is proscribed in the prohibition against bills of attainder (laws passed by Congress against individuals or a specific group where it assumes judicial magistracy, that is, circumvents and nullifies the power of the judiciary for what it deems political necessity or expediency). Such was the case with the internment of Japanese-Americans during World War II, which was sanctioned by the most liberal judge in U.S. history, Earl Warren. Like the suspension of habeas corpus during the Civil War by Lincoln, many still defend these unconstitutional acts as necessary war measures. (Jefferson Davis, incidentally, didn't suspend habeas corpus in the South). But, clearly, that argument is unapplicable in this case since George Bush's America is not yet at war with the whole world.


In case I lost any of you along the way, I explained the inherent unfairness of ex post facto laws in the simplest terms possible in another context and it may clarify some points here as well. Needless to say, it is an infinitely worse situation when the U.S. government adopts ex post facto laws than when a private corporation does:

The firing of the 3 Cuban-American journalists presents us with a case of the retroactive application of rules on ethical practice. Nothing is more odious to any sense of justice than what are known as ex post facto (retroactive) laws. This has always been the favorite tactic of dictatorial regimes for establishing control of the masses. It is the only legal (actually extra-legal) expedient that allows the state to criminalize the whole population and put it at the mercy of its whims and interests, by, in effect, blackmailing the whole nation into compliance.

Let me explain more carefully how ex post facto laws stifle dissent and you will have no difficulty understanding how they pertain to the present case. Suppose that you have no beard and that the government were to decree tomorrow that it was illegal for you and all men not to have beards. You don't have to suppose much because this is exactly what the Taliban did decree in Afghanistan. Now we should all cringe at the arbitrariness of such a disposition; yet even that is not as intolerable as if the government were to decree today that it was illegal for you to go beardless yesterday, or the day before, or even for a single day since puberty.

This is in effect what Castro did in Cuba in 1959. Before Castro came to power, there was no capital punishment in Cuba. Not only did Castro introduce the death penalty but he made it retroactive for offenses committed before 1959. But that's not the worst of it: he created a whole series of new "crimes" subject to the death penalty and proceeded to execute 15,000 Cubans whom he claimed had violated his new "laws" before the activity they engaged-in had been criminalized. To put this in the simplest terms: you walked on the right side of the street yesterday. Tomorrow the government makes it illegal for you to walk on the right side of the street today, tomorrow and yesterday. How can anyone living under such a regime feel safe? Even the perpetual leftside walker must fear that tomorrow his own conduct may be criminalized retroactively and himself thrown in jail alongside the erstwhile rightside walker.

Now let us apply these principles to the case of the 3 journalist fired by
The Miami Herald. When they worked for Radio and TV Martí, it was not unethical for them to do so since there was no rule or agreement prohibiting them from doing so. In fact, The Miami Herald was aware of the fact, publicized the fact in their paper and never said or did anything to signify their disapproval with that fact. Then the Knight Ridder corporation sells the Herald to the McClatchy corporation. Shortly thereafter, the new regime decrees that not only will it be a terminable offense to work for U.S.-sponsored broadcasting in the future, but that all (or some) who have been so engaged in the past (even under another regime when it was acceptable) shall be subject to termination. This is what's known as retroactive penalties. Whether they are applied in the public or private sector, such dispositions fly in the face of the most elementary concepts of justice. In fact, even children know better than to apply new rules to old games.

So whether or no the McClatchy corporation is actually trying to appease Castro or following Castro's lead becomes, if not a moot point, then at least a lesser consideration than the fact that it has demonstrably embraced its policies and tactics by adopting workplace policies that are at their root as arbitrary and tyrannical as Castro's "laws." In fact, it has become the very thing that it purports to oppose.

It is not a question of
The Herald joining with the enemy; but of The Herald becoming the enemy.



Alex said...

These laws were derided almost universally when it passed in 1996. They are an aberration to be sure. But legal residents don't enjoy the same constitutional protections as citizens. Their status can be stripped at any time by the INS (now HS) and then subject to deportation. Which BTW, is not considered a punishment but a proceeding. Go figure.

Alex said...

I should have said derided in legal circles. In the population at large, they were applauded by the usual suspects.

Manuel A.Tellechea said...


The rights of citizens and legal residents do differ. But if the Constitution forbids (as it does) the adoption of ex post facto laws, then that means that Congress can't pass such laws even against pariah groups such as immigrants (legal or otherwise).

Vana said...


You have opened my eyes, I can see now how Castro legitimized (though illegal) the killing of thousands, if this country stays on that path, the future indeed is a grim one, thank you.