| > Also, even if someone at the NSA carried out a program that violated the Constitution, there still wouldn't be jail time. It is true that such would be unlikely to be prosecuted, especially if it was authorized from above (and, depending on how it was authorized, there might even be a legal defense -- while ignorance of the law is not a defense, reasonable reliance on legal representations of those responsible for enforcing the law can be), but there is a specific criminal statute that applies to government employees acting deliberately contrary to Constitutional rights (deprivation of rights under color of law, 18 USC Sec. 242.) And an unconstitutional program might also violate the criminal provisions of FISA. So its not impossible for them to end up in jail, just unlikely for them to prosecuted. > That's not how the Constitution works. Sure, the Constitution itself doesn't provide criminal penalties, but there (as noted above) are statutory provisions creating criminal liability for government officers that use their position to deny people Constitutionally-protected rights. > The Constitution is strictly a metric by which courts decide what laws are allowed to say. It binds Congress, not other government workers. This is not, in fact, true. Government actions by actors other than Congress, and not justified by appeals to statute, can be decided on Constitutional grounds, both negative (Constitutional limitations) and positive (questions of whether positive authority is granted.) Some parts of the Constitution, by their own terms, bind Congress directly (but even these have often been construed as more general restrictions on government power even when not exercised through Congress.) |
Thank you for that. I think this would come under the "reasonable reliance on legal representations of those responsible for enforcing the law". Is the fact that a (later-to-be-declared-unconstitutional) law allows something itself a defense? I would strongly expect that to be the case, so to the extent that NSA programs were authorized by the Patriot act, even if said act is unconstitutional, workers would be immune.
In any event, following a later-declared-unconstitutional law does not seem to qualify as "deliberately contrary to Constitutional".
>Sure, the Constitution itself doesn't provide criminal penalties, but there (as noted above) are statutory provisions creating criminal liability for government officers that use their position to deny people Constitutionally-protected rights.
Fair enough.
>Government actions by actors other than Congress, and not justified by appeals to statute, can be decided on Constitutional grounds, both negative (Constitutional limitations) and positive (questions of whether positive authority is granted.)
If an action isn't warranted by statute, why would a court consider Constitutional issues at all? What about https://en.wikipedia.org/wiki/Constitutional_avoidance
Could you give an example?
(It can also bind other legislators, not just Congress, and can bind anyone after a court ruling, but that shouldn't get to criminal liability except insofar as that statute you mentioned above).