The House Foreign Affairs committee held a hearing this week on a controversial bill passed by the Senate that would create rights for victims of the 9/11 terror attacks to sue the country of Saudi Arabia.
It’s an example of a “retroactive statute,” one that imposes new legal consequences for conduct that occurred before the law was enacted.
Even in its early stages, the law is hotly contested. Sens. Charles Schumer and John Cornyn wrote the bill and pushed it through the Senate. Meanwhile, the White House openly opposes it, the President has said he will veto it, and both the speaker of the House and the Senate majority leader are skeptical.
As for the legal community, some prominent voices endorse this prospective legislation. Michael Cohen, special counsel to presidential candidate Donald Trump, believes the law properly holds others responsible for the deaths of innocent Americans, and that a veto would be inappropriate.
Other legal minds have always opposed this kind of retroactive legislation, calling it “oppressive, unjust, … tyrannical,” and “condemned by … civilized man.” No one tweeted that criticism; but no one could have, either. It’s from an early 19th-century, pre-hashtag, Supreme Court opinion. Though 9/11 was over a hundred years away, even then the court warned that after-the-fact legislation leads to “injustice and tyranny.”
Set aside, for this discussion, whether any Saudi Arabia officials did in fact play a role in the lead-up to the events of 9/11. A former member of the 9/11 commission has called for release of 28 classified pages from the panel’s report. As Nicole Gaouette reported for CNN, “The pages indicate that a network of Saudis, some in official positions, supported al Qaeda operatives in the runup to the attacks, according to some of those who have seen the documents and are pushing for their release, including former Navy Secretary John Lehman and former Sen. Bob Graham.”
Whatever the merits of the case, from Michael Cohen to Chief Justice John Marshall’s Supreme Court, you could say that reasonable legal minds have long disagreed on the issue of retroactive laws, just as they have in the legislative and executive branches.
One might write off Justice Bushrod Washington’s harsh criticisms in 1827 of retroactive legislation as antiquated sentiments from an era that featured a Whig Party and the Indian Removal Act (yes, just as bad as it sounds). Except, the court’s criticism was buttressed by the U.S. Constitution. The ex post facto clauses of Article I, Sections 9 and 10, denounce retroactive legislation. So, too, did Alexander Hamilton in his “Federalist Papers,” and English law, too, upon which ours is based. Distrust of ex post facto laws predates even American law itself.
Statutes that are unconstitutional as written are void “ab initio” — legislatively stillborn. So how did a proposed law get this far if it’s invalid on its face?
As with many things in the law, the Constitution is often interpreted in diametrically different ways. Sometimes the “law” is just whatever side of an evenly matched debate that a majority of the high court chooses. And, for well over a century, the Supreme Court has held that the ex post facto prohibitions only restrict criminal laws, not civil laws. That means Congress can pass laws creating new civil liability applied to past conduct; and it can also pass laws protecting companies from liability for already-committed misconduct. As long as it’s not a criminal case, it’s apparently constitutional.
While that narrow view of the ex post facto clauses is effectively the law of the land, prominent scholars like professor Evan Zoldan at the University of Toledo argue persuasively that the prevailing narrow view is wrong: Ex post facto laws should prohibit both criminal and civil laws that impose new consequences for already-committed conduct. Ex post facto aside, there would be something fundamentally suspect about passing a law capping a company’s oil spill liability, with an effective date of, say, the day before a company’s major oil spill, which has already happened.
Here’s the thing: It’s easy to understand the positions of Cohen, Schumer, Cornyn and other supporters of the bill. The intentions are good enough, and the bill sure feels good. It’s an understandable, primal instinct to look for people to punish when bad things happen to innocent people.
Everything from bar fights to Twitter wars to actual wars can often be traced to a singular motivation: justice for some past harms. Allowing 9/11 victims to sue Saudi Arabia may achieve some short-term objectives. Saudi Arabia is apparently a country with assets; it might even pay some judgments. Suing Saudi Arabia might satisfy some emotional desire for retribution for terrorism. But that doesn’t necessarily mean it’s legislatively the right thing to do.
Our legal system has long recognized that the ends do not always justify the means. Retroactive civil legislation offends not only the spirit of the constitution, but also fundamental notions of fair play. Perhaps no class of plaintiffs has ever evoked more national sympathy than those who would benefit from this proposed law. But that alone does not make a law just. Being faithful to the Constitution is not always easy or popular, but it’s ultimately the most patriotic thing to do.