Front page Balkin. Sabeel Rahman sabeel. XML powered by 2. Atom Feed 3. RSS 2. Comments: -- The most regrettable part of the legislation, then -- what might truly be deemed a ratification of the past wrongdoing -- is not that Congress has given the NSA new authorities, but that it did not insist upon some sort of accountability for -- or even transparency of!
That's one way to look at it. But from the perspective of the public, which may look to the law statutory and case law to understand the boundary between individual and government, Congress can now be rightfully cast as a charlatan, a liar. The lines it drew in , since amended, are worthless.
Congress itself declared them so. One would have to be naive in the extreme to think that the line drawn in has any more value than the "fake" line drawn in Accountability needs a gauge to measure against - and Congress has shown that its gauge is worthless.
But there is nothing that says a law on the books can't be stricken. Not that many are, just sayin', they aren't meant to stand forever. When Congress tries to criminalize conduct after the fact, that violates the ex post facto clause note that the clause only applies in criminal cases. The opposite is not true, however. Speaking generally, when Congress repeals a criminal statute, or reduces the penalty, such change can affect even pending cases. Under the common law pre-dating the Constitution , when a criminal law was repealed, the courts would not recognize prosecutions even when the acts took place before repeal.
The way Congress deals with this issue assuming it wants to is to include a savings clause which continues the previous law in effect for all acts prior to repeal.
