retroactive liability

so, this week is, yet again, decision time on the mystifying FISA Amendments Act

this is an abominable piece of legislation which simultaneously manages to gut parts of the US Constitution, set historically bad precedents and violate centuries of hard fought legal principles

It is not science, and not something I like to harp on, but I keep getting these flashbacks to the Late Roman Republic...

One aspect of the amendments is to provide retroactive immunity to telecommunications companies that co-operated with government requests for surveillance without warrants under the current FISA act.
Immunity to civil suits, not criminal suits.
The rationale is that the telcos should not be punished or provided with disincentive to co-operate in the future, as they were presumed to have acted in good faith.
Civil suits would bring out discovery which would elucidate whether the surveillance was actually illegal, as suspected.
The "good faith" aspect is dubious: partly because one telco - QWest - decided the surveillance was in fact illegal, and was then effectively punished by loss of goernment contracts and prosecution, on another matter, of a senior executive; and by the fact that the telcos that did co-operate were well compensated and cut surveillance when payments were late. A judge has already noted that the other telcos claims they could not decide the legality of the surveillance requests were ludicrous.

A principle at stake here, other than minor issues like the 4th Amendment to the US Constitution, is that the US President, and other Executive Branch minion, may not order violations of the law.
A law enforcement officer cannot go to a private citizen and order them to commit an illegal act, nor promise immunity or indemnity. The law applies equally.
There is a civil law "sanity clause" on this - exigent circumstances can be used to justify dispensation with laws - like speeding on the way to the hospital, or committing a lesser infringement to save lives, like breaking a window on a neighbours house and entering, to rescue a child from fire - BUT, part of the process is that you take your chance on that - you get to go to a prosecutor, judge and jury and say "yes, I did that, but it was justified" - an appeal to disgression.
The telcos can of course also do this - say what they did, in closed court if necessary - and explain why they had to do it and why punishment under the law ought to be dispensed with.

Another principle is "ex post facto" laws - typically this precludes acts being made illegal after the fact.
Here acts are being made legal after the fact, which has some symmetry with the normal ex post facto concern.
Arguably it is sometimes justifiable to make acts legal after the fact. There are novel situations continually arising where the law is unclear or may be interpreted to cover acts, where either that was not the legislative intent, or there is reason to legalise the behaviour.
Arguably that is NOT the case here - rather it is a matter of behaviour which was explitictly illegal and which will continue being illegal in the future, but is being retroactively made legal for a finite period in the past.

So... one of the amendments proposed to the amendments bill is to wait to activate the immunity clause until after the Inspectors General have reported on the investigation into the events - ie first find out what is being immunized.
Which begs the question - if the IG report is bad, and the immunity is actually covering up some much more serious illegalities, like surveillance of domestic political figures, or journalists - then do you undo the immunity?

If you pass retroactive immunity and then undo it, and make the acts illegal again, is that now an unconstitutional ex post facto law?

As a non-lawyer, it would seem to me that is in fact the case - that any legal hint of immunity precludes revisiting the case and re-establishing liability, which really ought to trigger the no ex post facto laws clause.

So no matter what, the FISA amendments act looks like bad law. Independent of what happened, the scope of the surveillance and the good faith of the actors.
And, really, if the President and the telcos want everyone else to rely on their presumptive good faith, they should accept that the investigation into what they did will also be in good faith, let it proceed and accept that no one will prosecute them if all they did was exigent and for the common good.

Deal?