Constitutionalism, redux

We have moved past constitutionalism and executive authority in our studies; not so in the real world.

In Sunday's Washington Post, an article reports on US efforts to reduce the number of people being held at Guantanamo Bay Detention Facility. The second paragraph reinforces what we discussed, an executive branch seeking to diminish any checks on it. The first paragraph is more interesting: we are looking to influence other constitutions, as well.

A Fate Worse Than Guantanamo?
The U.S. Has an Obligation to the Prisoners It Is 'Releasing' Overseas

By Eric Umansky
Sunday, March 5, 2006; Page B07
The United States is negotiating with Afghanistan, Saudi Arabia and Yemen to return nearly all the detainees who are from those countries. In Afghanistan and Yemen, the men will reportedly be housed in U.S.-funded prisons. Talks on the possible wholesale transfers have been going on since last summer. Among the apparent sticking points: Afghanistan, like most countries, has a constitution that doesn't allow for prisoners to be held indefinitely without trial.

Meanwhile, the administration is pushing to remove the one check that exists on the transfers. Since the Supreme Court ruled nearly two years ago that Guantanamo detainees have access to federal courts, prisoners there have been able to challenge plans to move them to countries where they might face abuse. After all, such transfers would violate an anti-torture treaty the United States has signed. But in the administration's view, that avenue for appeal shouldn't exist: The government argues that the recently passed Graham-Levin amendment, which limits detainees' access to the courts, applies to the cases already filed on behalf of nearly all detainees. If that view prevails, it will close out the possibility of using the cases to challenge pending transfers or even have detainees' lawyers be notified about them.