Posted by
Josh Todd on Tuesday, May 05, 2009 11:40:05 PM
Article I, Section 9 of the United States Constitution states, “No bill of attainder of ex post facto Law shall be passed.”
A bill of attainder is a legislative act that specifies a particular person or group of persons for some sort of punishment without a formal trial. Ex post facto literally means “after the fact,” which in the case of laws means that the legislature may not make an act illegal and punish a person for committing said act before it became illegal.
Well, the Office of Professional Responsibility—a Justice Department outfit—apparently will not prosecute the attorneys who advised the Bush Administration regarding its chosen interrogation techniques; however, they are “likely to ask that state bar associations consider possible disciplinary action, including reprimands or even disbarment, for some of the lawyers involved in the writing the legal opinions…”
Thus, the Obama Administration will not technically violate Article I, Section 9, but they come very close.
They will be singling out a group for punishment, but it will be done outside of the government; therefore, no harm, no foul, right? Likewise, they will be asking state bar associations to effectively punish a group of lawyers whose acts were not illegal at the time. While their advice may be reprehensible to some, generally speaking, legal advice does not usually lead to disbarment.
(An aside: Take, for example, Lynne Stewart, the radical attorney who defended Sheik Omar Abdel Rahman, was not disbarred for giving legal advice to a known terrorist (her disbarment did not occur until she was convicted of a felony, at which point the bar had no choice). Advising the president that water boarding in search of information designed to protect the country was not illegal is not the same as providing counsel to a terrorist who aided in killing innocent people.)
Despite the technicality, the Obama Administration is flirting with flouting the Constitution. Instead of doing the prosecution themselves, administration officials will pass the buck to their largely sympathetic brethren in the private sector. But since bar associations are so closely associated with governments, the Obama Admin.’s toes are even closer to the line.
What is occurring here is what occurs in banana republics. The Obama Administration is dangerously close to criminalizing policy differences. This is a very dangerous precedent. If similar acts continue, Republicans, once in power again, may be attempted to continue the cycle.
Still, Article I, Section 9 states that this sort of thing is not supposed to occur, but then again, when does the Constitution matter anymore?
Source(s): http://www.nytimes.com/2009/05/06/us/politics/06inquire.html?_r=1&hp; http://www.law.cornell.edu/constitution/constitution.articlei.html;