Can Congress Rescind Retroactive Immunity and Prosecute for Past Crimes?

[Rach3]

I have a confusing legal question.

We all know ex post facto laws are illegal in the US - that means you can't prosecute someone for doing X, if X was legal at the time (but later criminalized).

Now, suppose X is illegal, and someone (let's call him Borgé Gush) does X. Later, Congress passes a law legalizing X and granting retroactive immunity for anyone who commited X in the past. Can Congress even rescind the immunity and legality, i.e., will Borgé ever worry about being prosecuted for his illegal act? Or would that be ex post facto?

How does it work?

 

[z-component]

Uh oh. What did our president do now?

 

[russ_watters]

Interesting question - I wonder if there were any cases back during prohibition that would apply...?

 

[Rach3]

Uh oh. What did our president do now?

Nothing at all, he just felt like granting himself immunity for hypothetical past acts of torture and other war crimes. Why'd he do that? No reason.

"The Military Commissions Act of 2006: A Short Primer "
http://writ.news.findlaw.com/mariner/20061025.html

 

[edward]

Nothing at all, he just felt like granting himself immunity for hypothetical past acts of torture and other war crimes. Why'd he do that? No reason.

"The Military Commissions Act of 2006: A Short Primer "
http://writ.news.findlaw.com/mariner/20061025.html

Uhh maybe it's like with Clinton. He did it because he could.
Seriously if allowed to stand it sets a very troubling precedent.

 

[Rach3]

Uhh maybe it's like with Clinton. He did it because he could.
Seriously if allowed to stand it sets a very troubling precedent.

You're right. It's a troubling thing, as a precedent. It's not bad per se, but it could lead to bad things. As long as we're just torturing a few hundred people (mostly foreign-looking), some of whom might actually be guilty, it's a precedent for potentially disturbing future acts; in and of itself though, there's not much wrong with it.

 

[Jimmy Snyder]

The Constitution means that you cannot pass a law and make it effective prior to the date of passage. There is nothing in the Constitution that prevents you from repealing a law and either maintaining, or abandoning its effectiveness before the date of repeal. In practical terms, it seems to me that a successful prosecution of a violation that is no longer a crime would depend upon why the repeal took place. The following analogy is a poor one, but illustrates the issue. During a drought, it may be forbidden to use water from a source which, when there is no drought, is commonly used. If someone uses that water during the drought, it seems to me they could be prosecuted for it even after the drought is over and the usage ban lifted. The successful prosecution of a violation of the prohibition on alcohol, on the other hand, would depend at least on assembling a jury that disagreed with the repeal in a country where most people agreed with it.

 

[Rach3]

The issue is that Congress gave GWB blanket immunity from prosecution for any and all actions he took.

 

[verty]

I guess they're all on the same side.

 

[edward]

The issue is that Congress gave GWB blanket immunity from prosecution for any and all actions he took.

That is the precedent that I was referring to. Bush would not have needed immumity unless he had violated laws.