Someone needs a lesson in separation of powers... AGAIN

Well now, take a quick look at this bill, and see if you can tell me what's wrong with it:

HR 563 IH 110th CONGRESS 1st Session H. R. 563 To vacate further proceedings in the prosecution of certain named persons. IN THE HOUSE OF REPRESENTATIVES January 18, 2007 Mr. HUNTER (for himself, Mr. POE, Mr. JONES of North Carolina, Mr. TANCREDO, Mr. ROHRABACHER, Mr. GOODE, Mr. BURTON of Indiana, Mrs. MUSGRAVE, Mr. ROYCE, Mr. DUNCAN, Mr. BARTLETT of Maryland, Mr. HERGER, Mr. COLE of Oklahoma, Mr. BARRETT of South Carolina, Mr. CARTER, Mr. PORTER, Mr. MCCOTTER, Mr. BURGESS, Mr. GERLACH, Mr. MICA, Mr. SAXTON, Mr. DAVIS of Kentucky, Mr. SESSIONS, Mr. CANTOR, Mr. HOBSON, Mr. LAHOOD, Mr. WALSH of New York, Mr. TERRY, Ms. FOXX, Mr. HASTINGS of Washington, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. KIRK, Mr. ROGERS of Alabama, Mrs. MYRICK, Mr. STEARNS, Mr. RENZI, Mr. BONNER, Mr. BAKER, Mr. PETERSON of Pennsylvania, Mr. EVERETT, Mr. CANNON, Mrs. CUBIN, Mr. SHADEGG, Mr. SHIMKUS, Mr. COBLE, Mr. ENGLISH of Pennsylvania, Mr. GILCHREST, Mr. HAYES, Mr. LEWIS of Kentucky, Mr. ROGERS of Kentucky, Mr. DAVID DAVIS of Tennessee, Mr. PEARCE, Mr. GINGREY, Mr. GARY G. MILLER of California, Mr. LOBIONDO, Mr. TIBERI, Mr. WHITFIELD, Mr. LATOURETTE, Mr. YOUNG of Florida, Mrs. BLACKBURN, Mr. PITTS, Mr. SMITH of New Jersey, Mr. SULLIVAN, Mr. MANZULLO, Mr. MCHUGH, Mr. WILSON of South Carolina, Mr. MCKEON, Mr. AKIN, Mr. KINGSTON, and Mr. TIAHRT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To vacate further proceedings in the prosecution of certain named persons. Whereas the conviction and sentencing of United States Border Patrol Agents Ignacio Ramos and Jose Compean for the pursuit and shooting of drug smuggler Osvaldo Aldrete-Davila which is the subject of a Federal criminal case in the United States District Court for the Western District of Texas represents an extreme injustice: Now, therefore, Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Congressional Pardon for Border Patrol Agents Ramos and Compean Act’. SEC. 2. ORDER. It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place. SEC. 3. SENSE OF CONGRESS. It is the sense of Congress that the Department of Homeland Security review the rules of engagement presently utilized by the United States Border Patrol. END

If you guessed it had something to do with the title of this post, you get a gold star.

So, a little background for those of you who don't know.

Ramos and Compean were Border Patrol Agents on the U.S. Mexican border, along the El Paso section; which happens to be one of the busiest smuggling regions, as well as one of the more dangerous.

Border patrol rules of engagement specify that BP agents are not to enter into armed confrontation with smugglers. Well, Ramos and Compean did; and they ended up shooting one in the back.

Oooh no, in the back, those foul evildoers...

Yeah it's bull. Anyone who knows anything about a violent situation knows that when shooting starts, you don't pay attention to anything other then staying alive, and stopping the threat. If he's still moving, he's still fighting; but that's neither here nor there.

The problem is, after shooting at said scumbag (who was attempting to smuggle 800lbs of Marijuana that day) 15 times (they apparently only hit him once), they figured "ehh just another dead smuggler", and they didn't report the incident.

Now, that is a seriously big no-no. Very bad ju-ju. They violated their ROE, and they knew it, so they decided to hush it up. Grounds for dismissal certainly, and possibly a minor prosecution; but probably nothing really serious.

But the scumbag wasn't dead; and he complained to his own government about being shot. The Mexican government then complained to our Department of Homeland Security (who run the Border Patrol), who at the behest of the Mexican government told the U.S. Attorney for the western district of Texas that these two agents had "Committed a conspiracy to commit murder against a Mexican citizen".

Anyway, the El Paso U.S. Attorney looks at the ROE, looks at the criminal drug smuggling bastard shot in the back, and then looks at the pressure from Homeland Security and the Mexican government; and of course he sees where his bread is buttered, and decides to crucify Ramos and Compean.

They were charged with and convicted for, assault with a deadly weapon, attempted murder, and conspiracy to commit murder; and they each got 12 years... actually 11 years and 1 day, and 12 years respectively (not sure what the calculation was on that).

It gets better. Once they were remanded to custody, TWO BP AGENTS WHO SHOT A MEXICAN DRUG SMUGGLER WERE PUT INTO GEN-POP WITH ALL THE MEXICAN GANGS.

They were of course beaten nearly to death within hours, before being put into protective custody.

Now, SOP for a cop who gets sent to prison, is that they are NEVER put in with the general population, because if they do, it's effectively a death sentence. How this was ignored... let's just say is smells.

Let me just say something: I know for a fact we didn't get the whole story out to the public. I have family in the Border patrol who tell me this whole thing stinks to high heaven. BUT, based on what evidence was presented, this wasn't attempted murder or assault, this was a JUSTIFIED line of duty shooting.

What it comes down to is, the BP agents in question were so scared of the bureaucratic bull, and attitude of the Border Patrol management, that they decided to pretend it never happened. Their fear of their own bad management is what created this problem, not any improper action in shooting said drug smuggling scum bag.

Anyway, off my soap box for a minute.

Now, look at this little section from the bill above:

SEC. 2. ORDER. It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.

Now, here's the big problem.

Congress can't do that.

The constitution provides clearly delineated separation of the powers of the branches of government. Congress Makes the Laws, the Courts interpret and apply the laws, and the Executive branch executes and enforces the laws.

Pretty cut and dried.

Congress could write a new law, saying that what Ramos and Compean did isn't illegal; but it wouldn't change their case because what they did WAS illegal when they did it, according to the interpretation of the courts.

The courts could overturn their conviction, and dismiss the charges.

The Executive branch is the enforcement branch, and as such the privilege of executive clemency is their purview; so the president could pardon them.

But Congress cannot, "By act of Congress Assembled", vacate a conviction, or grant a pardon. Oh they can do it symbolically with a "sense of congress" resolution, or they can ASK the president to issue a pardon, they can even by act of congress ask the supreme court to consider the case (as they did with the Terry Schaivo issue... though the way it was worded they overstepped their bounds there as well)...

But congress can not vacate a conviction, or issue a pardon. In fact, they can't order the courts, or the president to do ANYTHING; except to follow the law. It is not within their constitutionally delegated powers to do so.

The only enforcement power that congress has, is to cite someone for contempt of congress (either for not following a law, or for not responding to the requests of congress expressed in their powers of subpoena to compel evidence and testimony); or to institute impeachment against the president (and in fact, they don't enforce that: the supreme court, acting on the authority of the senate, vacates the office of the president, and then the next in line of succession takes over).

Of the bills 87 co-sponsors, most of them are lawyers, who one would assume took constitutional law at some point or another. Many of them are congressmen of long service, who really should understand their constitutional authority, role, and powers.

Perhaps we are asking too much of our congressmen to understand their jobs, or the constitution.